United States District Court, D. Kansas
DANIEL J. JACKSON, Plaintiff,
GREG JACKSON, et al., Defendants.
ORDER ON MOTION TO PROCEED WITHOUT PREPAYMENT OF FEES
AND REPORT & RECOMMENDATION OF DISMISSAL
KENNETH G. GALE UNITED STATES MAGISTRATE JUDGE.
conjunction with his federal court Complaint (Doc. 1),
Plaintiff Daniel J. Jackson has also filed a Motion for Leave
to Proceed In Forma Pauperis (Doc. 3, sealed). After review
of Plaintiff's motion, as well as his Complaint, the
Court GRANTS the IFP application, but RECOMMENDS that the
District Court dismiss Plaintiff's claims in their
Motion to Proceed In Forma Pauperis.
28 U.S.C. § 1915(a), a federal court may authorize
commencement of an action without prepayment of fees, costs,
etc., by a person who lacks financial means. 28 U.S.C. §
1915(a). “Proceeding in forma pauperis in a
civil case ‘is a privilege, not a right - fundamental
or otherwise.'” Barnett v. Northwest
School, No. 00-2499, 2000 WL 1909625, at *1 (D. Kan.
Dec. 26, 2000) (quoting White v. Colorado, 157 F.3d
1226, 1233 (10th Cir. 1998)). The decision to grant or deny
in forma pauperis status lies within the sound discretion of
the court. Cabrera v. Horgas, No. 98-4231, 1999 WL
241783, at *1 (10th Cir. Apr. 23, 1999).
is a liberal policy toward permitting proceedings in
forma pauperis when necessary to ensure that the courts
are available to all citizens, not just those who can afford
to pay. See generally, Yellen v. Cooper,
828 F.2d 1471 (10th Cir. 1987). In construing the application
and affidavit, courts generally seek to compare an
applicant's monthly expenses to monthly income. See
Patillo v. N. Am. Van Lines, Inc., No. 02-2162, 2002 WL
1162684, at *1 (D.Kan. Apr. 15, 2002); Webb v. Cessna
Aircraft, No. 00-2229, 2000 WL 1025575, at *1 (D.Kan.
July 17, 2000) (denying motion because “Plaintiff is
employed, with monthly income exceeding her monthly expenses
by approximately $600.00”).
supporting financial affidavit, Plaintiff, who is 61 years
old, indicates he is single with no dependants. (Doc. 3-1,
sealed, at 1, 3.) He lists no employment for the past 12
months and disability as his only income. (Id., at
2.) He owns no real property. (Id., at 3.) He states
that he owns an older vehicle with little residual value.
(Id.) Plaintiff pays a small amount in rent each
month and lists a large outstanding utility bill; he states
that his electricity was recently shut off and he is making
payments on the amount owed. (Id., at 5.)
the information contained in his financial affidavit, the
Court finds that Plaintiff has established that his access to
the Court would be significantly limited absent the ability
to file this action without payment of fees and costs. The
Court thus GRANTS Plaintiff leave to proceed in forma
pauperis. (Doc. 3, sealed.)
Sufficiency of Complaint.
party is proceeding in forma pauperis, a court has a
duty to review the complaint to ensure a proper balance
between these competing interests. 28 U.S.C.
§1915(e)(2). Section 1915 of Title 28, United States
Code, requires dismissal of a case filed under that section
if the court determines that the action (1) is frivolous or
malicious, (2) fails to state a claim upon which relief may
be granted or (3) seeks monetary relief from a defendant who
is immune from suit. 28 U.S.C. §1915(e)(2).
Additionally, Fed.R.Civ.P. 12(h)(3) requires the Court to
dismiss the case “[i]f the court determines at any time
that it lacks subject-matter jurisdiction.” King v.
Huffman, No. 10-4152-JAR, 2010 WL 5463061, at *1 (D.
Kan. Dec. 29, 2010).
purpose of § 1915(e) is “the prevention of abusive
or capricious litigation.” Harris v. Campbell,
804 F.Supp. 153, 155 (D.Kan. 1992) (internal citation
omitted) (discussing similar language contained in §
1915(d), prior to the 1996 amendment). Sua sponte
dismissal under § 1915 is proper when the complaint
clearly appears frivolous or malicious on its face. Hall
v. Bellmon, 935 F.2d 1106, 1108 (10th Cir. 1991).
determining whether dismissal is appropriate under §
1915(e)(2)(B), a plaintiff's complaint will be analyzed
by the Court under the same sufficiency standard as a Rule
12(b)(6) Motion to Dismiss. See Kay v. Bemis, 500
F.3d 1214, 1217-18 (10th Cir. 2007). In making this analysis,
the Court will accept as true all of Defendant's
well-pleaded facts and will draw all reasonable inferences
from those facts in his favor. See Moore v. Guthrie,
438 F.3d 1036, 1039 (10th Cir.2006). The Court will also
liberally construe his pleadings. See Jackson v. Integra
Inc., 952 F.2d 1260, 1261 (10th Cir.1991); Hall, 935
F.2d at 1110. This does not mean, however, that the Court
must become an advocate for the pro se party.
Hall, 935 F.2d at 1110; see also Haines v.
Kerner, 404 U.S. 519, 92 S.Ct. 594 (1972). Liberally
construing a pro se party's allegations means
that “if the court can reasonably read the pleadings to
state a valid claim on which the [pro se party]
could prevail, it should do so despite [his] failure to cite
proper legal authority, his confusion of various legal
theories, his poor syntax and sentence construction, or his
unfamiliarity with pleading requirements.”
Hall, 935 F.2d at 1110.
complaint “must set forth the grounds of
plaintiff's entitlement to relief through more than
labels, conclusions and a formulaic recitation of the
elements of a cause of action.” Fisher v.
Lynch, 531 F.Supp.2d 1253, 1260 (D. Kan. Jan. 22, 2008)
(citing Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007) and
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991)
(holding that a plaintiff need not precisely state each
element, but must plead minimal factual allegations on those
material elements that must be proved)). “In other
words, [the pro se party] must allege sufficient facts to
state a claim which is plausible - rather than merely
conceivable - on its face.” Fisher, 531
F.Supp.2d at 1260 (citing Twombly, 127 S.Ct. at
a complaint generally need not plead detailed facts,
Fed.R.Civ.P. 8(a), it must give the answering party
sufficient notice of the claims asserted so that they can
provide an appropriate answer. Monroe v. Owens, Nos.
01-1186, 01-1189, 01-1207, 2002 WL 437964 (10th Cir. Mar. 21,
2002). Rule 8(a) requires three minimal pieces of information
to provide such notice to the defendant: (1) the pleading
should contain a short and plain statement of the claim
showing the pleader is entitled to relief; (2) a short and
plain statement of the grounds upon which the court's
jurisdiction depends; and (3) the relief requested.
Fed.R.Civ.P. 8(a). After reviewing Defendant's state
court pleadings (Docs. 1, 4) and construing the allegations
liberally, if the Court finds that he has failed to state a
claim upon which relief may be granted, the Court is
compelled to recommend that the action be dismissed.
alleges that he is “attempting on running for the
1st Congressional District House of
Representatives in the State of Kansas” and Defendants,
who are private persons not acting under color of state law,
have actively inhibited his ability to run for political
office in violation of federal and state law. (Doc. 1, at 5.)
There are federal statutes criminalizing the type of behavior
of which Plaintiff complains. For instance, pursuant to 18
USCS § 594, it is illegal to intimidate, threaten,
coerce, or attempt to intimidate, threaten, or coerce, any
other person for the purpose of interfering with the right of
such other person to vote. Pursuant to 18 USCS § 241,
which the Complaint references, it is illegal for “two
or more persons conspire to injure, oppress, threaten, or
intimidate any person in any State, Territory, Commonwealth,
Possession, or District in the free exercise or enjoyment of
any right or privilege secured to him by the Constitution or
laws of the ...